ANG Newspapers, 564 (2004)

California Newspapers Partnership d/b/a ANG Newspapers and Northern California Media Workers Guild/Typographical Union, Local 39521, TNG-CWA, AFL–CIO. Case 32–CA–20008

November 9, 2004

DECISION AND ORDER

By Chairman Battista and Members Schaumber and Meisburg

On November 6, 2003, Administrative Law Judge Mary Miller Cracraft issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions[1] and briefs and has decided to affirm the judgeÂ’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

The judge found that the Respondent violated Section 8(a)(1) by telling its employee, a reporter, that he created the appearance of a conflict of interest by appearing before the city council to seek support for the Union’s efforts to negotiate a contract. We reverse and dismiss the complaint.

i. background

The Employer is a newspaper publisher. The Union represents a unit of about 200 reporters, editors, and other editorial employees. At the time of the events at issue here, the parties’ collective-bargaining agreement had expired, and they were involved in protracted negotiations for a new contract. During this time, the Union and its members decided to seek support from local city councils. They did so by having the Respondent’s reporters speak at the city council meetings and ask for resolutions supporting the Union’s efforts to get a contract.

This case revolves around the Respondent’s discussion with employee Tom Anderson about Anderson’s city council appearance. Anderson is a bargaining unit member and a reporter for the Employer’s Fremont Argus. On October 22, 2002,[2] Anderson attended a Fremont City Council meeting while off duty.[3] He identified himself as a business reporter for the Respondent and asked the council to pass a resolution supporting the Union’s efforts to negotiate a contract. Anderson told the council that he would not promise more favorable news coverage in return for the resolution.

At the time of the meeting, Anderson was a business reporter who did not regularly attend city council meetings or report on the city council. During the course of his reporting in the past, however, Anderson had interviewed city officials, including the mayor and one city council member. Further, a few weeks after his city council appearance, Anderson wrote an article on the city’s economic development, in which he quoted certain city officials who report to the city council. The article appeared in the paper about 1 month after Anderson’s city council appearance.

Sometime after October 22, Business Editor Drew Voros and Deputy Business Editor Mark Stafforini, who supervised Anderson, learned that Anderson had addressed the city council. Later, they also learned that Anderson was writing an article about the city. Concerned about the appearance of a conflict of interest, Voros consulted other members of management and decided to speak to Anderson.[4]Â

Voros and Stafforini met with Anderson on November 22. After a routine discussion with Anderson about an unrelated article that Anderson was writing, Voros and Stafforini raised the issue of Anderson’s city council appearance. They told Anderson that they were concerned about the appearance of a conflict of interest because Anderson had gone before the city council to ask for a favor, when Anderson might be reporting about the city or city council, and in fact had written a story that involved city sources and was about city government. Voros and Stafforini told Anderson that they felt someone else should have spoken to the council instead of Anderson. They explained the importance of protecting the integrity and credibility of the paper. They emphasized, however, that Anderson had the right to engage in union activity. They told Anderson that their concerns were unrelated to the fact that Anderson’s remarks to the city council had been about the Union. At the end of the discussion, Voros reaffirmed that Anderson was a valued employee. Anderson was not disciplined.

The judge found that the Respondent violated Section 8(a)(1) by telling Anderson that he had created the appearance of a conflict of interest by speaking to the city council on behalf of the Union. We reverse. Â

ii. analysis

1. Appropriate Legal Standard

   In finding that the Respondent violated Section 8(a)(1), the judge relied on two alternative rationales: one based on the BoardÂ’s decision in Peerless Publications, 283 NLRB 334 (1987), an 8(a)(5) case, and another based on the BoardÂ’s 8(a)(1) standard, under which the judge examined whether the RespondentÂ’s conduct reasonably tended to interfere with the employeeÂ’s Section 7 rights. Under both rationales, the judge found that the RespondentÂ’s “admonition” to Anderson violated Section 8(a)(1).Â

   As the judge acknowledged, Peerless involved an alleged violation of Section 8(a)(5). The issue was whether the respondent, a newspaper publisher, violated Section 8(a)(5) by unilaterally implementing a code of ethics without giving the union notice and an opportunity to bargain. The issue in the present case, of course, is different: whether the Respondent violated Section 8(a)(1) by telling an employee that he had created the appearance of a conflict of interest. Although Peerless addresses some of the same newspaper industry concerns as are involved herein, we find it more appropriate to examine this case under 8(a)(1) principles.[5] Â

   Under the 8(a)(1) standard, the Board first examines whether the employer’s conduct reasonably tended to interfere with Section 7 rights. If so, the burden is on the employer to demonstrate a legitimate and substantial business justification for its conduct. “It is the responsibility of the Board to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.” Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001); Jeannette Corp., 532 F.2d 916, 918 (3d Cir. 1976).

   As explained below, even assuming that the RespondentÂ’s conversation with Anderson interfered with Section 7 rights, we find that the Respondent has demonstrated a legitimate and substantial business justification that outweighs the adverse effect on Section 7 rights.Â

2. The Respondent Demonstrated a Legitimate and Substantial Business Justification That Outweighs the Adverse Effect on Section 7 Rights

   The Respondent has a legitimate interest in protecting its newspaper against the appearance of conflicts of interest that could damage the paper’s credibility. As the District of Columbia Circuit has stated,

   [P]rotection of the editorial integrity of a newspaper lies at the core of publishing control. In a very real sense, that characteristic is to a newspaper or magazine what machinery is to a manufacturer. At least with respect to most news publications, credibility is essential to [a publisher’s] ultimate product and to the conduct of the enterprise.

   Newspaper Guild Local 10 (Peerless Publications) v. NLRB, 636 F.2d 550, 560 (D.C. Cir. 1980). We recognize that Anderson’s beat did not cover the city council. However, the Respondent’s witnesses testified that reporters cannot know with certainty what they will be covering in the future. Beats can change, and reporters are sometimes assigned to cover stories on which they would not ordinarily report. The Respondent’s former executive editor also testified that readers, in assessing the credibility of a newspaper, see a reporter as working for the newspaper as a whole and do not necessarily recognize the distinction between beats. Even though Anderson did not regularly cover the city council, the newspaper for which he reported did, and Anderson himself wrote an article about the city’s economic development only a month after his city council appearance. Significantly, it is undisputed that Anderson sometimes did deal with city officials during the course of his reporting, and in fact quoted city officials in his article about the city’s economy. Under all these circumstances, the Respondent had the right to discuss with Anderson the possibility that his city council address created the appearance of a conflict of interest. Thus, the Respondent had a legitimate and...